On Ollie North, Don't Get `Technical'

By
James H. Andrews /
June 13, 1994

IN the many news reports recently about Oliver North's campaign in Virginia for the US Senate, one phrase has cropped up like spring dandelions. A June 8 Associated Press article about the Republican nominee is typical: ``North, whose conviction for lying to Congress about the Iran-contra scandal was overturned on a technicality....'' On a technicality.

The phrase is common in articles and broadcasts about overturned convictions. No doubt many reporters would justify it as journalistic shorthand, one of numerous such usages that are necessary in a business where skinflint editors parcel out words in inches and seconds. And certainly it's more economical to say a criminal conviction was reversed ``on a technicality'' than to say that a person was set free:

* ``because police officers uncovered evidence in violation of the suspect's Fourth Amendment right to privacy''; or

* ``because prosecutors obtained incriminating statements from the suspect through means that the Supreme Court says are reminiscent of the Star Chamber.''

Is it really true, however, that ``on a technicality'' equates with those wordier statements? If it does, then the point of this column is itself a technicality. But too often ``on a technicality'' is a phrase with an attitude (albeit one that is often unconscious).

The attitude encompasses several beliefs: First, that many legal rules and doctrines are ``technical'' - not just in the sense that nuclear physics is technical, but rather, that such rules and doctrines are arcane, antiquated, and nit-picky.

Second, that lawyers, as members of a dark priesthood, manipulate the law's impenetrable technicalities - which they devised - to achieve dubious ends. Third, and most threatening to public respect for the legal system, ``on a technicality'' bespeaks an underlying notion that law and justice have only a nodding acquaintance.

Now, each of those viewpoints may be accurate in some instances. Yet they are contrary to ancient ideals about law, perhaps even cynical. Consequently, they place the burden of proof on anyone who asserts that, in a given case, the law has operated in a way that mocks justice and that justifies the dismissive use of ``on a technicality.''

Take North's case. He was convicted by a jury of preparing a deceptive chronology of the Iran-contra affair for Congress, improperly shredding documents, and using government money for a security gate at his home. Serious offenses. And he probably committed them. So why did an appeals court let him walk?

Because earlier North had been compelled to testify to Congress about his actions, with the assurance that he could not be prosecuted on the basis of information he provided lawmakers. Despite great efforts by the federal prosecutors to quarantine themselves from North's congressional testimony, in the end they couldn't convince the appeals court that their evidence was wholly ``untainted'' by North's words on Capitol Hill.

In short, the court ruled that North may have been convicted partly from evidence out of his own mouth, uttered only because of Congress's grant of immunity.

That's pretty ``technical,'' all right. It's also consistent with fundamental American ideas about protection from self-incrimination and the right not to be coerced or tricked by the government. Those are safeguards worth protecting for all of us, even such characters as Ollie North.

Journalists should adopt phrasing along the following lines: ``A jury concluded that [name] had committed crimes. The conviction was reversed, however, after an appeals court found that the government had not proved its case consistently with all the rights guaranteed defendants in American courts.''

That's a mouthful, and there's little hope that it will replace ``on a technicality.'' But it is fairer - both to North and to our system - in explaining why the rogue ex-colonel is running for the Senate rather than sitting in a cell.